Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2885 (ALL)

Om Prakash Yadav v. State of U. P.

2023-12-21

J.J.MUNIR

body2023
JUDGMENT : J.J. Munir, J. The petitioner, Om Prakash Yadav, appears to be a qualified and duly selected Assistant Teacher, appointed with the Raja Ram Sahab Lal Kisan Adarsh Junior High School, Saraibeeka, Jaunpur way back on 4.9.1996, and, yet, for some mysterious reason, the respondent-District Basic Education Officer, Jaunpur says that he is not qualified, not validly selected or appointed and, therefore, not entitled to salary. 2. The petitioner has moved this Court praying that a mandamus be issued to the District Basic Education Officer, Jaunpur and the Management to adjust/confirm the petitioner on the vacant post of an Assistant Teacher created with the Institution aforesaid on the retirement of one Ram Tawankal Patel and pay him salary. In substance, the petitioner prays that this Court do issue a writ of mandamus, commanding these respondents to pay him salary pursuant to his appointment as an Assistant Teacher, made strictly in accordance with law and duly approved by the Education Authority. 3. Heard Mr. Vijay Kumar Singh, learned Senior Advocate, assisted by Mr. Bhaiya Lal Yadav, learned Counsel for the petitioner, Mr. Raj Bihari, learned Counsel appearing on behalf of respondent No. 5 and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel appearing for respondent Nos. 1 to 4. 4. Raja Ram Sahab Lal Kisan Adarsh Junior High School, Jaunpur is a recognised and aided non-Government Institution. It imparts education to both boys and girls from Classes VI to VIII. There are some 400 students reading in this school, which shall hereinafter be called 'the Institution'. The teachers and other employees working in the Institution are paid salary in accordance with the provisions of the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978 (for short, 'the Act of 1978'). 5. The petitioner says that he is the holder of Bachelor of Arts and Bachelor of Education degrees. He, therefore, possesses the minimum educational qualifications required for appointment to the post of an Assistant Teacher in a recognized and aided Junior High School. The petitioner, when selected and appointed, also fulfilled the criterion of age. The procedure for selection and appointment of an Assistant Teacher to a Junior High School, recognised and aided by the State, is governed by the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short, 'the Service Rules'). 6. The petitioner, when selected and appointed, also fulfilled the criterion of age. The procedure for selection and appointment of an Assistant Teacher to a Junior High School, recognised and aided by the State, is governed by the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short, 'the Service Rules'). 6. According to the petitioner's case, he was selected on 27.8.1996 by a duly constituted Selection Committee who ranked him at serial No. 1 of the select list. The petitioner's selection was approved by the District Basic Education Officer, Jaunpur vide order dated 29.8.1996 after scrutiny of papers forwarded by the Manager of the Institution. After the Authority's approval, granted under Rule 10(5)(i)(a) of the Service Rules, the petitioner was appointed by the Manager vide a letter of appointment dated 4.9.1996 to the post of an Assistant Teacher on probation for a period of one year. A copy of the letter of appointment was forwarded by the Manager of the Institution to the District Basic Education Officer, Jaunpur on 6.9.1996. The petitioner appeared before the Manager of the Institution on 9.9.1996 to submit his joining report and was permitted to join. On 10.9.1996, the Manager of the Institution directed the Headmaster to permit the petitioner to join his duties. It is the petitioner's case that ever since he joined the Institution, he is regularly teaching all subjects assigned to him from Classes VI to VIII. 7. The grievance of the petitioner is that he has not been paid salary, though he has represented his case and on several occasions, sought audience from the respondents for the purpose. 8. Failing in his endeavours, the petitioner instituted Civil Misc. Writ Petition No. 7728 of 1998, impleading both the District Basic Education Officer, Jaunpur and the Committee of Management of the Institution through its Manager as party respondents to the aforesaid writ petition. The last mentioned writ petition was disposed of by this Court vide order dated 9.3.1998, directing the Manager of the Institution to consider and decide the petitioner's representation within four months from the date of production of a certified copy of the order. 9. The last mentioned writ petition was disposed of by this Court vide order dated 9.3.1998, directing the Manager of the Institution to consider and decide the petitioner's representation within four months from the date of production of a certified copy of the order. 9. Subsequently, the last mentioned order was modified on an application made by the petitioner on 26.7.1999, whereby a direction was issued to the District Basic Education Officer, Jaunpur to decide the petitioner's representation, instead of the Manager of the Institution. 10. The petitioner submitted a copy of the orders passed by this Court in Civil Misc. Writ Petition No. 7728 of 1998, alongwith an application to the District Basic Education Officer, Jaunpur to act in accordance with the order. The District Basic Education Officer, in compliance with this Court's order, decided the petitioner's representation dated 2.9.2003, a copy of which is on record, whereby, taking note of the sanctioned strength of teachers and other matters relating to the validity of the petitioner's appointment, directed payment of his salary. 11. Despite the aforesaid orders passed by the District Basic Education Officer, Jaunpur, which is in addition to the initial approval granted by him to the petitioner's selection, the petitioner was not paid his salary for the post of Assistant Teacher with the Institution. The petitioner has brought on record photostat copies of the attendance registers annexed as Annexure 8 to the writ petition, and also, Annexure S.A.-2 to the third supplementary affidavit dated 10.4.2018. 12. It is the petitioner's case that upon retirement of one Ram Tawankal Patel, an Assistant Teacher with the Institution, the post of an Assistant Teacher became vacant and Ghanshyam Gupta, Prabhari Primary Teacher, took temporary charge in place of Ram Twankal Patel on 10.10.2012, in compliance with an order of the District Basic Education Officer, Jaunpur dated 10.10.2012. The signatures of the aforesaid teacher were verified by the District Basic Education Officer, Jaunpur also on 10.10.2012. 13. The signatures of the aforesaid teacher were verified by the District Basic Education Officer, Jaunpur also on 10.10.2012. 13. The petitioner has then relied on a Government Order No. 1232/79-6-2012-VIP-05/2012 dated 31.1.2013, issued by the Principal Secretary to the Government of U.P. in the Department of Basic Education, which takes note of the fact that on account of the Government order dated 30.4.2010, the payment of salaries of some teachers and employees of private aided Junior High Schools has been obstructed and lays down guidelines in the matter, how payment is to be made in such cases. It speaks, amongst other things, about those schools that have been brought on grant-in-aid, and, how, after determining their cadre strength, payment to teachers is to be made. It also speaks about schools, where posts are not sanctioned and teachers and other employees are functioning in excess of the sanctioned strength. About these schools, it is said that wherever salaries have not been paid after May 2010, until time the teachers and other employees, in excess of the cadre strength, are not adjusted against sanctioned posts, vacancies caused by retirement and for other reasons, are not to be filled up by new appointments, but the existing teachers adjusted. The petitioner thinks that his rights can be dealt with under this Government Order and seeks to claim its benefit. Allusion to this issue would be made during the course of this judgment. In fact, dejected by constant failure to secure the payment of his salary, the petitioner seems to have thought that the Government Order dated 31.1.2013 would come to his rescue, and on that basis, prayed for relief of adjustment against the vacancy caused by Ram Tawankal Patel's retirement on 10.10.2012. 14. For reasons that we would presently indicate, we think that the petitioner need not ask for adjustment against a post that has subsequently fallen vacant and against which, of course, his adjustment may be a debatable issue, if one were to look to the Service Rules on one hand and the Government Order dated 31.1.2013, on the other. This Court need not go into that issue at all, nor the petitioner depend for the enforcement of his rights upon adjustment against the vacancy caused by Ram Tawankal Patel's retirement. 15. This Court need not go into that issue at all, nor the petitioner depend for the enforcement of his rights upon adjustment against the vacancy caused by Ram Tawankal Patel's retirement. 15. The procedure for selection and appointment of an Assistant Teacher to a private aided Junior High School is governed by the Service Rules. These also include the minimum qualifications prescribed. The relevant provisions of the Service Rules, as these stood at the time of the petitioner's selection and appointment, read: 3. Appointment.- (1) It shall be the responsibility of the Management to fill a vacancy in the post of Headmaster or assistant teacher as the case may be, of a recognised school by 31st July every year. (2) If any vacancy occurs during an academic session, it shall be filled within two months from the date of occurrence of such vacancy. 4. Minimum qualification.- (1) The minimum qualifications for the post of assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training). (2) xxxxx 5. Eligibility for appointment.- No person shall be appointed as Headmaster or assistant teacher in Substantive capacity in any recognised school, unless-- (a) he possesses the minimum qualifications prescribed for such post; (b) he is recommended for such appointment by the Selection Committee. 6. xxxx 7. Advertisement of vacancy.- (1) No vacancy shall be filled, except after its advertisement in at least one newspaper having adequate circulation in the locality and the intimation of such vacancy to the District Basic Education Officer. (2) In every advertisement and initiation under clause (1), the management shall give particulars as to the name of the post, the minimum qualifications and age limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement. 8. Age limit.- The minimum age shall on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7 be-- (i) in relation to the post of assistant teacher 18 years; (ii) in relation to the post of Headmaster 25 years. 9. 8. Age limit.- The minimum age shall on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7 be-- (i) in relation to the post of assistant teacher 18 years; (ii) in relation to the post of Headmaster 25 years. 9. Selection committee.- For appointment of Headmaster and Assistant Teacher in institutions other than minority institutions and in the minority institutions, the Management shall constitute a Selection Committee as follows : A--Institutions other than Minority institutions : (i) For the post of Headmaster; (1) manager; (2) A nominee of District Basic Education Officer; (3) A nominee of the Management; (ii) For the post of Assistant Teacher ; (1) Manager; (2) Headmaster of the recognised school in which appointment is to be made ; (3) A nominee of the District Basic Education Officer; B xxxx 10. Procedure for selection.- (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment (2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee. (3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management. (4) The manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer. (5) (i) If the District Basic Education Officer is satisfied that-- (a) the candidates recommended by the Selection Committee possess the minimum qualification prescribed for the post; (b) the procedure laid down in these rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under clause (4). (ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee. (iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee. 11. Appointment by the management.- (1) On receipt of communication of approval or as the case may be, on the expiry of the period of one month under clause (iii) of sub-rule (5) of Rule 10, the management shall, first offer appointment to the candidate given the first preference by the Selection Commines and on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee and on the failure of such candidate also, to the last candidate specified in such list (2) (a) The appointment letter shall be sent under the signature of the manager by registered post to the selected candidate. (b) The appointment letter shall clearly specify the name of post, the pay-scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter his appointment shall be cancelled. (c) A copy of the appointment letter shall also be sent to the District Basic Education Officer. 12. Confirmation.- (1) The appointment of every Headmaster or assistant teacher, as the case may be, of a recognised school, not being an appointment under Rule 20 shall, in the first instance, be on probation of one year, which may be extended for a further period not exceeding one year. (2) If the service of Headmaster or teacher of a recognised school are not terminated before the expiry of the period or the extended period of probation, as the case may be, he shall be deemed to have been automatically confirmed on the expiry of such period. 16. The petitioner holds a degree of Bachelor of Arts and Bachelor of Education, and, therefore, fulfilled the minimum educational qualifications mandated by Rule 4 of the Service Rules, as these then stood. 16. The petitioner holds a degree of Bachelor of Arts and Bachelor of Education, and, therefore, fulfilled the minimum educational qualifications mandated by Rule 4 of the Service Rules, as these then stood. Rule 4, made it requisite for a substantive appointment to the post of an Assistant Teacher in any recognized school that the candidate must possess the minimum prescribed qualifications for the post and is recommended for such appointment by the Selection Committee. There was also a requirement that a vacancy in an Institution governed by the rules could not be filled up, except after it was advertised in at least one newspaper having adequate circulation in the locality and the intimation of such vacancy to the District Basic Education Officer. 17. The constitution of the Selection Committee as prescribed by Rule 9(A)(ii) of the Service Rules for selection to the post of an Assistant Teacher is a three-member Committee, comprising the Manager of the Institution, the Headmaster and a nominee of the District Basic Education Officer. The other relevant provisions would be alluded to a little later. 18. In the present case, what this Court finds is that the Management of the Institution sought permission of the District Basic Education Officer to advertise the post in question which was granted vide memo No. cs& 2/1742/96-97 fnukad 01-8-96. After this permission was granted, an advertisement was published in some newspaper, which the District Basic Education Officer has acknowledged in his order dated 20.3.2004. The interviews were notified through this advertisement, published on 4.8.1996, to be held on 27.8.1996 at 10.00 a.m. in the campus of the Institution. It is difficult at this distance of time to go into the name and the circulation of the newspaper, because this objection has not been raised at any point of time by the Authority or anyone else, earlier in the day, when a copy of the newspaper would have been at hand. 19. By a letter No. cs& 2/2314-15/96-97 fnukad 21-8-96, the District Basic Education Officer nominated the Prathmik Up Vidyalaya Nirikshak Machhlishahr, Jaunpur as the departmental observer to sit on the Selection Committee. On the scheduled date of interviews, four candidates appeared, out of whom, the three-member Selection Committee headed by the Manager considered their candidature and found the petitioner suitable. 20. Alongwith the supplementary affidavit, proceedings of the Selection Committee have been annexed as Annexure S.A.-4. On the scheduled date of interviews, four candidates appeared, out of whom, the three-member Selection Committee headed by the Manager considered their candidature and found the petitioner suitable. 20. Alongwith the supplementary affidavit, proceedings of the Selection Committee have been annexed as Annexure S.A.-4. It shows that the Selection Committee was headed by the Manager and had, for its members, the Headmaster of the Institution, besides Smt. Vimlashankar Tripathi, Prathmik Up Vidyalaya Nirikshak, Machhlishahr, Jaunpur as the District Basic Education Officer's nominee. 21. The Selection Committee's minutes are clear and recommend the petitioner for appointment. There is an appended chart to the minutes of the Selection Committee, which shows the criteria, following which, marks have been awarded by the members of the Selection Committee to the four candidates who appeared. They have been awarded interview marks on the basis of the marks earned in the High School, the Intermediate, the Bachelor of Arts and the Bachelor of Education examination. The petitioner secured 29 marks in the interview and ranked above the other three who secured lesser interview marks. 22. The proceedings of the Selection Committee dated 27.8.1996 were placed before the Committee of Management on 28.8.1996, who by a unanimous resolution, selected the petitioner. The proceedings of the Committee of Management dated 28.8.1996 are annexed to the supplementary affidavit as Annexure S.A.-5. It is to be noted that the Selection Committee has drawn up the list of candidates interviewed in order of preference and carries all particulars postulated by Rule 10(2) of the Service Rules. Recommendations of the Selection Committee were accepted by the Management, as already noticed, and forwarded to the District Basic Education Officer within one week, as envisaged by Rule 10(4) of the Service Rules. 23. The Basic Education Officer, vide order dated 29.8.1996, granted approval to the recommendations of the Selection Committee, as endorsed by the Management in the petitioner's favour, subject to the condition that if any material fact has been suppressed, the approval order shall stand automatically revoked. It is on the foot of the said approval dated 29.8.1996, granted by the Basic Education Officer that a letter of appointment dated 4.9.1996 was issued by the Manager of the Institution, addressed to the petitioner with a copy thereof endorsed to the Basic Education Officer and the Headmaster of the Institution. This letter of appointment is on record as Annexure 1 to the writ petition. This letter of appointment is on record as Annexure 1 to the writ petition. 24. It must be noticed here that the petitioner joined the post, as already noted, on 10.9.1996, whereafter, he has been discharging his duties. Since, the petitioner was not paid his salary, he represented the matter and ultimately moved this Court for a direction to pay his salary. The writ petition instituted by the petitioner, already mentioned, was disposed of by an order dated 9.8.1998, directing the Manager, in the first instance, to decide the petitioner's representation, preferably within a period of four months of the date of receipt of a copy of this Court's order. 25. Later on, vide order dated 26.7.1999, the order dated 9.3.1998 was modified on an application, directing the District Basic Education Officer to decide the petitioner's representation within a period of three months from the date of making it, after hearing the Management. The Basic Education Officer, by an order dated 20.3.2004, examined the matter and found the selection and appointment to be one made in accordance with the Rules. It was also noted that the Assistant Director of Education (Basic), Vananasi Division, Varanasi had, vide his letter dated 28.8.1988, sanctioned twelve posts of Assistant Teacher. The District Basic Education Officer found that together with the petitioner, there were twelve Assistant Teachers functioning with the Institution, out of whom nine alone were receiving salary from the State Exchequer. In the aforesaid circumstances, the Basic Education Officer directed that there was no justification not to pay the petitioner's salary and held him entitled. He granted permission for payment of the petitioner's salary disposing of the representation. 26. This Court is constrained to observe that the petitioner's appointment is apparently not some kind of a spurious one that has sprung up from nowhere. It has originated with the Management advertising the vacancy relating to an apparently sanctioned post and the procedure under the Service Rules has been meticulously followed to select and appoint the petitioner. The petitioner's appointment has been twice approved. It was once approved initially when the papers were moved by the Management as required by the Service Rules on 29.8.1996 with the District Basic Education Officer passing an order bearing letter No. ??-2/2396/96-97 of that date; and later on, it was thoroughly examined and again affirmed by the District Basic Education Officer vide his order dated 20.3.2004. 27. It was once approved initially when the papers were moved by the Management as required by the Service Rules on 29.8.1996 with the District Basic Education Officer passing an order bearing letter No. ??-2/2396/96-97 of that date; and later on, it was thoroughly examined and again affirmed by the District Basic Education Officer vide his order dated 20.3.2004. 27. The order dated 20.3.2004 was passed pursuant to a direction made by this Court in a writ petition to consider the petitioner's representation, as he was not receiving salary despite an appointment that was made apparently, following the prescribed procedure against a sanctioned post. The Management, in their counter affidavit, have supported the petitioner's selection and appointment. 28. In the counter affidavit filed on behalf of respondent No. 4, that is to say, the District Basic Education Officer, Jaunpur, the stand taken is that the petitioner's appointment was made against a non-sanctioned post, without determining the sanctioned strength. This was, later on, determined by the Department, pursuant to a Government Order dated 30.4.2010 and the judgment of this Court in Writ A No. 45051 of 2010, Achhe Lal Mishra v. State of U.P. and others, to be one post of Headmaster and four posts of Assistant Teacher, one Clerk and one Peon for each Institution as the valid strength. 29. The eligibility qualification of the petitioner has also been disputed without saying how the petitioner is not eligible. About the orders already made by the District Basic Education Officer, it is just said that the petitioner's appointment, if approved de hors the rules by the District Basic Education Officer, would not entitle the petitioner to salary. About the submission of the learned Counsel for the petitioner that the petitioner may be adjusted against a subsequently arising vacancy, it is said that it is simply not permissible. 30. This Court can only accept the last contention of the respondents that a vacancy subsequently arising may not be available to the petitioner, but, as said earlier, there is absolutely no reason to think that the petitioner requires any of those subsequently occurring vacancies to support his appointment. The petitioner was appointed in accordance with rules against a sanctioned post way back in the year 1996. The petitioner was appointed in accordance with rules against a sanctioned post way back in the year 1996. The strength of teachers, at the time, was obviously determined by the District Basic Education Officer in accordance with the norms then prescribed, before he permitted the vacancy to be advertised. The petitioner's selection was scrutinised at all levels and it is difficult to accept that the petitioner would have been selected or appointed against a non-sanctioned post, with a nominee of the District Basic Education Officer sitting on the Selection Committee that was constituted in accordance with the Service Rules. 31. The selection was apparently held after due advertisement in accordance with the Service Rules then in force and the Selection Committee also drew up, apart from the minutes, an evaluation sheet conforming to the Rules, by which they ranked the four candidates they interviewed. All these papers went to the District Basic Education Officer from the Selection Committee through the Management and the District Basic Education Officer scrutinised the petitioner's candidature as well as his qualifications, before granting approval for the payment of his salary borne on the State exchequer. 32. The two orders of the District Basic Education Officer granting approval, and subsequently affirming it, dated 29.8.1996 and 20.3.2004 respectively, have never been revoked by the District Basic Education Officer or a higher Authority in the Education Department. It is difficult, therefore, to accept the respondents' contention made in the most cavalier fashion that approval, if any, to the petitioner's appointment is non est. Also, the contention that the petitioner was appointed against a non-sanctioned post, based on an order of the year 2010 passed by this Court determining the sanctioned strength and a Government Order issued on its basis, cannot be accepted. 33. Between the years 1996 and 2010, when the sanctioned strength was determined in terms of an order of this Court, subsisting appointments validly made with the approval of competent Authorities in accordance with Rules cannot be undone, as it would unsettle vested rights that have already accrued. The determination of sanctioned strength for teachers of Junior High School in the year 2010, even if regarded correct, cannot retrospectively be applied to undo concluded appointments of teachers, who are functioning in the Institution after a valid appointment. 34. The determination of sanctioned strength for teachers of Junior High School in the year 2010, even if regarded correct, cannot retrospectively be applied to undo concluded appointments of teachers, who are functioning in the Institution after a valid appointment. 34. Valid rights that have come to be realized in favour of the beneficiary under a particular rule cannot be taken away, going by the settled principles, by an amendment to the Rules made retrospectively. The principle that right or benefits already earned under the existing rules cannot be withdrawn by a retrospective amendment of the Rules finds eloquent statement in the holding in State of Madhya Pradesh and others v. Yogendra Shrivastava, (2010) 12 SCC 538 , where it has been held: ''15. It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect. But it is well-settled that rights and benefits which have already been earned or acquired under the existing Rules cannot be taken away by amending the Rules with retrospective effect. (See N.C. Singhal v. Armed Forces Medical Services [ (1972) 4 SCC 765 ] ; K.C. Arora v. State of Haryana [ (1984) 3 SCC 281 : 1984 SCC (L&S) 520] and T.R. Kapur v. State of Haryana [1986 Supp SCC 584 : (1987) 2 ATC 595].) Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. The right to NPA @ 25% of the pay having accrued to the respondents under the unamended Rules, it follows that respondent employees will be entitled to non-practising allowance @ 25% of their pay up to 20-5-2003.'' 35. The same principle has been enunciated by the Supreme Court in T.R. Kapur and others v. State of Haryana and others, 1986 Supp SCC 584. 36. It is true that these principles have been laid down in the context of rules framed by the Governor under the proviso to Article 309 of the Constitution and here, we are concerned with what may be called, in the worst case, a redetermination of the sanctioned strength of teachers for aided Junior High School upon a proper reckoning done under the orders of this Court. If this then is the state of affairs, appointments validly made according to the understanding of the relevant rules at the time when the petitioner was appointed, including the sanctioned strength, cannot be tested for its validity according to the understanding of those rules or the determination of the sanctioned strength made years later after the petitioner has already been appointed. 37. The mere fact that salary has not been paid is not an index of the fact that the appointment has not been validly made; rather, it shows a deeply perpetuated illegality, where two orders of the Competent Authority, entitled to approve an appointment and bind the State exchequer under the Service Rules, has been observed in breach with non-payment of the petitioner's salary. 38. In the passing, this Court may say that the order of this Court dated 7.8.2010 passed in Writ A No. 45051 of 2010, Achhe Lal Mishra v. State of U.P. and others, is hardly an order that actually determines anything for the sanctioned strength of teachers in a Junior High School. It is just an interlocutory order and it is dated 17.8.2010. The order dated 17.8.2010, passed in Writ A No. 45051 of 2010, reads: ''Today, Secretary, Basic Education, Government of Uttar Pradesh, Sri Anil Sant is present in Court and he has filed affidavit, which is accepted and taken on record. In the affidavit so filed, it has been stated that the deponent has recently taken over charge of the post in question, and has further mentioned that detailed affidavit will be filed if so required by this Court. In the facts of the case, it is hereby directed that full details be furnished, with regard to sanctioned posts of teachers, actual number of teachers functioning in recognised and aided Institutions, in respect of district Jaunpur, and the number of teachers who are functioning under the orders of this Court. List this case after six weeks, showing the name of Sri K.S.Kushwaha, Advocate, for respondents.'' 39. The aforesaid writ petition is still pending, and there are no further orders of the kind which may be said to hold that four posts of Assistant Teacher alone would be there in a Junior High School. List this case after six weeks, showing the name of Sri K.S.Kushwaha, Advocate, for respondents.'' 39. The aforesaid writ petition is still pending, and there are no further orders of the kind which may be said to hold that four posts of Assistant Teacher alone would be there in a Junior High School. There are decisions, no doubt, of this Court speaking on the strength of Government Orders prescribing the sanctioned strength issued much later in the day, but, as said earlier, those later determinations of sanctioned strength cannot be carried back into history, to judge the validity of appointments made decades earlier, where incumbents have been validly appointed to the position of an Assistant Teacher in a Junior High School, like the petitioner. There is no reason or material to show that the apparently valid appointment to the post of an Assistant Teacher in the Institution, made in favour of the petitioner, does not entitle him to receive salary. There is also evidence that he has constantly taught throughout his tenure. 40. In the opinion of this Court, the petitioner is, therefore, entitled to payment of his salary under the Act of 1978, determined in accordance with the rules, for the entire period of time that the petitioner has been serving. 41. In the result, this petition succeeds and shall stand allowed with costs. The petitioner is entitled to receive salary as an Assistant Teacher with the Institution from the date of his appointment, together with all its revisions, increments and accretions, by whatever name called, all to be paid to the petitioner within a period of two months from the date of receipt of a copy of this judgment by the District Basic Education Officer, Jaunpur. The petitioner shall also be paid his current salary, month by month, like any other Assistant Teacher. 42. Let this order be communicated to the District Basic Education Officer, Jaunpur by the Registrar (Compliance).